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.
Attachment B: October 2021 Senate Estimates Questions on Notice
SENATE STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
ATTORNEY-GENERAL’S PORTFOLIO
SUPPLEMENTARY BUDGET ESTIMATES 2021 - 2022
PA-Office of the Australian Information Commissioner
LCC-SBE21-023 - Correspondence to departments and agencies regarding improving compliance
Senator Larissa Waters asked the following question on 26 October 2021:
Senator WATERS: Will the new FOI commissioner, whether it is the interim person or the permanent
person, have a role in improving departmental compliance?
Ms Falk: Thank you for that question. One of the roles of both the Information Commissioner and the FOI
commissioner is to undertake education and also monitoring and to ensure that agencies are enabled to
comply with statutory time frames. We have been doing work on this on two fronts. One is, as you
mentioned, complaints that are made to the OAIC. Delay and timeliness is the key area of complaint. I have
undertaken a number of investigations where I have made recommendations that seek to address the cause of
those delays, and they are published on our website. The second is that we have analysed the agency
statistics, and we have corresponded with agencies where we think there is a need for improvement in their
timeliness and asked them to consider the causes and to put in place a rectification plan. So I consider that
this kind of work is already in train and that it will be built upon by the FOI commissioner.
Senator WATERS: Could you let me know which agencies you have written to seeking improvement in
their response statistics?
Ms Falk: Yes, Senator. I can take that on notice.
The response to the honourable senator’s question is as follows:
The Acting Freedom of Information Commissioner wrote to the following agencies regarding their
compliance with the statutory processing period:
o Department of Foreign Affairs and Trade11
o Australian Broadcasting Corporation12
o Australian Electoral Commission13
o Norfolk Island Regional Council14
o Commonwealth Department of Public Prosecutions15.
11 No response received.
12 On 18 November 2021, the ABC advises that there was a reporting error. The ABC also advise that it is: currently undertaking
recruitment to backfill the FOI co-ordinator position, developing an online training module and will update its website with FAQs.
13 On 19 November 2021, the AEC advised that there was a reporting error and that AEC is altering the way that they report its
statistics.
14 On 19 November 2021, the NIRC has advised there was a reporting error. The NIRC also advise that it is engaging a third party
to assist with processing FOI requests. The NIRC also advises that its website is under review and the types of information that is
available.
15 On 16 November 2021, the CDPP advised that there was reporting errors. The CDPP will take steps to correctly report statistics.
CDPP will also update its webpage to address issues highlighted by the OAIC.
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SENATE STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
ATTORNEY-GENERAL’S PORTFOLIO
BUDGET ESTIMATES 2020-21
PA-Office of the Australian Information Commissioner
LCC-BE21-106 - Complaints upheld in 2020-21
Senator Kim Carr asked the fol owing question on 27 May 2021:
Senator KIM CARR: I'll come to Home Affairs in a moment. I just want to be clear: in terms of the current
financial year, 2020-21, how many complaints have you had so far?
Ms Falk: The figure I have in mind is 117, but I'm just going to check that. We currently have on hand 119
complaints and 122 received year-to-date, this financial year.
Senator KIM CARR: How many of those have you decided to investigate?
Ms Falk: Under the act, I have a legislative obligation to look into all complaints unless I decline to do so on
specific grounds, such as they lack substance.
Senator KIM CARR: Have you found that any lack substance?
Ms Falk: Yes, we have found that some lack substance, but I would need to take on notice if you would like
that breakdown.
Senator KIM CARR: Yes, thank you. In terms of this current financial year, how many have you upheld?
Ms Falk: Again, I would need to take that on notice. But, Senator, if it assists the committee, I could refer
you to the OAIC's website where I publish the outcomes of complaint investigations. Under the act, I can
make recommendations to agencies to address the issues in complaints. Those recommendations are public,
and they also serve as an educative tool for other agencies.
The response to the honourable senator’s question is as follows:
From 1 July 2020 to 27 May 2021, the OAIC received 136 FOI complaints.
As at 27 May 2021, the OAIC had 116 complaints on hand. At that time, the OAIC had commenced
investigations into 26 complaints.
Of the FOI complaints made between 1 July 2020 and 27 May 2021, 1 was finalised on the basis that it was
frivolous, vexatious, misconceived, lacking in substance or not made in good faith under subsection 73(e) of
the
Freedom of Information Act 1982 (the FOI Act).
Between 1 July 2020 and 27 May 2021 the Information Commissioner finalised 3 complaints by way of an
investigation notice under s 86 of the FOI Act.
Outcomes and recommendations from FOI complaints investigations conducted between 1 July 2019 and 15
April 2021 are published at https://www.oaic.gov.au/freedom-of-information/information-commissioner-
decisions/freedom-of-information-investigation-outcomes/.
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FOIREQ22/00095 198
SENATE STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
ATTORNEY-GENERAL’S PORTFOLIO
BUDGET ESTIMATES 2020-21
PA-Office of the Australian Information Commissioner
LCC-BE21-105 - Complaints in relation to AGD in 2019-20
Senator Kim Carr asked the fol owing question on 27 May 2021:
Senator KIM CARR: How many complaints did you have in relation to the A-G's Department in 2019-20?
Ms Falk: I'd have to take that on notice.
Senator KIM CARR: While you are there, can you tell me how many complaints you decided to investigate?
Ms Falk: In relation to that department?
Senator KIM CARR: Yes.
Ms Falk: I can take that on notice.
Senator KIM CARR: And how many complaints in 2019-20 in relation to the A-G's Department did you
uphold?
Ms Falk: There are none that come to mind in relation to these questions, but I will go back and check the
statistics. The complaints that are made under section 70 of the FOI Act primarily relate to the two
government agencies that receive the most applications for FOI—that is, the Department of Home Affairs
and Services
Australia.
The response to the honourable senator’s question is as follows:
The Office of the Australian Information Commissioner (OAIC) received six complaints under s 70 of the
Freedom of Information Act 1982 (Cth) (FOI Act) about the Attorney-General’s Department in the 2019-20
financial year.
Five of those complaints were finalised by way of transfer to the Commonwealth Ombudsman pursuant to
s 74 of the FOI Act. The OAIC commenced an investigation under s 75 of the FOI Act in relation to one
complaint. The investigation remains ongoing.
OAIC NOTE as at 7 February 2022:
On 13 December 2021, the Australian Information Commissioner finalised this investigation, issuing a
Notice on Completion under s 86 of the FOI Act and making 2 recommendations. The Commissioner
concluded that the Attorney-General’s Department did not correctly apply the statutory test in s 16(1) of the
FOI Act when it agreed to accept the transfer of the second request. The Department could not be reasonably
satisfied that the requirements of s 16(1) were met at the time transfer was requested and should have not
agreed to accept transfer of the request on that basis. The Department has advised that the recommendations
‘will be implemented in full’, with implementation updated to be provided by 18 February and 30 July 2022.
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Attachment C: Department of Home Affairs response to s 86 Notice in personal cohort
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FOIREQ22/00095 202
Commissioner brief: FOI Regulatory functions
Key messages
• The OAIC is an independent statutory agency established under the
Australian
Information Commissioner Act 2010 (AIC Act). The AIC Act confers the Information
Commissioner with power to perform FOI regulatory functions, including:
o review of FOI decisions of agencies and ministers
o investigating FOI complaints
o issuing FOI guidelines
o monitoring agencies’ compliance with the FOI Act
o making decisions on extension of time requests and vexatious applicant
declarations and
o compiling FOI data and access trends.
•
IC reviews: the numbers of IC reviews on hand has increased each year for the past
four years.
o In 2020-21 we received 1,224 applications for IC review.
The overall increase in IC review applications from 2015-16 to 2020-21 (up
to 30 June 2021) was 140%.
o As at 31 December 2021, the OAIC had 1,485 IC review applications on hand.
While the office continues to look for and implement opportunities to increase
productivity in relation to its freedom of information functions, it remains the
case that although significant efficiencies have been found and applied the
function has not kept pace with incoming reviews.
o The IC review jurisdiction is complex and many documents subject to IC review
are sensitive (including cabinet documents, national security, defence and
international relations, legally privileged document, documents affected law
enforcement, and confidential documents) and often affect third parties. A high
proportion of matters involve consideration of various (more than one)
exemptions and hundreds of folios of material that agencies and ministers
contend is exempt under the FOI Act.
o In the absence of supplementary FOI funding, the ability of the OAIC to keep
pace with increases to the review caseload wil continue to be challenged. (For
further information, see Commissioner Briefs -
FOI IC reviews (D2022/000231)
and FOI process review D2021/002427).
o On 21 September 2021 the OAIC published a new Direction as to certain
procedures to be fol owed by applicants in Information Commissioner
reviews under s 55(2)(e)(i) of the FOI Act. The Direction aims to clarify the
procedure for applicants in the IC review process, and is intended as a
FOIREQ22/00095 203
companion piece to the
Direction as to certain procedures to be fol owed in IC
reviews which applies to agencies or ministers.
o Along with the Applicant Procedure Direction we published minor updates
to Part 10 of the FOI Guidelines (Review by the Information Commissioner) and
released a ‘Quick guide’ summary to help applicants navigate and comply with
the Direction.
•
FOI complaints: as at 31 December 2021, the OAIC had 110 open complaints.
o The most complained about issue is delay.
o The OAIC has also received FOI complaints about compliance log obligations,
agencies’ conduct during the request consultation process and poor customer
service.
o During Q1 and Q2 of 2021-22, myself and the Acting Freedom of Information
Commissioner made recommendations under s 88 of the FOI Act, in 29 FOI
complaint matters.
o I have finalised a Commissioner Initiated Investigation into the Department of
Home Affairs’ non-compliance with statutory timeframes for processing non-
personal FOI requests. The CII report, available on the OAIC website, includes my
findings and recommendations. I encourage agencies consider whether the
implementation of such recommendations within their own organisation wil
improve their compliance with statutory processing timeframes. For further
information, see Commissioner Briefs FOI
Complaint issues (D2022/000233) and
Department of Home Affairs CI D2022/000235).
•
Extension of time applications: Agencies and ministers may apply to the Information
Commissioner for an extension of time (EOT) during the processing of FOI requests.
o During Q1 and Q2 of 2021-22, the OAIC received 2,454 EOT applications. (For
further information, see Commissioner Brief FOI
Extension of time applications
D2022/000238).
o In 2019-20 the OAIC received 4,243 EOT applications, a 12% increase on the
previous year. Most of these (1,357) were received in the third quarter; 44%
more than during the same time the previous year.
o In 2020-21 the OAIC had received 3,587 EOT applications. (For further
information, see Commissioner Brief FOI
Extension of time applications
(D2022/000238).
•
FOI Guidelines: During 2020-21 and the first quarter of 2021-22, the OAIC worked on
updates to several parts of the FOI Guidelines.
o We have reissued updates of Part 3 (Processing and deciding requests for
access), Part 4 (Charges for providing access), Part 10 (Review by the Information
FOIREQ22/00095 204
Commissioner) and Part 11 (Investigations and complaints) and Part 12
(Vexatious applicant declarations). (For further information, see Commissioner
Brief and FOI OAIC engagement and Guidelines update (D2022/000236).
o We are currently working on updates to Part 5 (Exemptions), Part 13
(Information Publication Scheme), Part 14 (Disclosure Log).
o In September 2021 the OAIC consulted with agencies on revised Part 14 of the
FOI Guidelines which incorporate the findings of the Disclosure Log Desktop
Review. The consultation period closed on 15 October 2021 and we are currently
reviewing comments and updating Part 14 in response.
•
Vexatious applicant declaration: To date, no Information Commissioner has made a
decision to declare a person a vexatious applicant on their own initiative. There would
need to be compelling circumstances for me to consider exercising this discretion. A
declaration has the practical effect of preventing a person from exercising an important
legal right conferred by the FOI Act. For that reason, a declaration wil not be lightly
made, and an agency that applies for a declaration must establish a clear and
convincing need for a declaration. A declaration by the Information Commissioner can
be reviewed by the Administrative Appeals Tribunal.
o During Q1 and Q2 this financial year, the Information Commissioner has received
3 vexatious applicant declaration applications.
o 2 vexatious applicant declarations were made in 2020-21. (For further
information, see Commissioner brief
Vexatious applicant declarations
(D2021/002164)).
Compliance with disclosure log obligations: My office has completed a review of
agency compliance with the disclosure log obligations in the FOI Act. The review
examined practices across 38 government agencies, looking at whether agencies and
ministers were complying with obligations and the extent to which documents were
made available for download from websites. The review found that while most
agencies are largely compliant with their obligations, some agencies require people to
contact them for access to the documents listed on their disclosure log. We published a
report which outlines a number of recommendations for agencies and ministers.
Several agencies have accepted the Review’s recommendations, and have
implemented them or are in the process of implementing them.
• (For further information, see Commissioner Briefs FOI
OAIC Engagement and
Guidelines ( D2021/004529).
•
FOI request data and trends: Data col ected from Australian government agencies has
been reported in the 2020-21 OAIC annual report.
o The number of FOI requests made to Australian Government agencies in 2020–
21 decreased by 16% over the previous year.
FOIREQ22/00095 205
o 41% of al FOI requests were granted in ful in 2020–21.
o 77% of al FOI requests received were for documents containing personal
information. (For further information, see Commissioner brief -
Trends in use of
FOI Act exemptions (D2022/000232).
•
Domestic and international engagement on FOI issues: We engage with
o Information Commissioners and Ombudsmen from other Australian jurisdictions
and internationally, Association of Information Access Commissioners (AIAC) (bi-
annually)
o The International Conference of Information Commissioners (ICIC) (annually).
This year, the conference was held virtual y in June 2021. My Office led the
adoption of a resolution which called for the proactive publication of information
relating to the COVID-19 pandemic and was adopted unanimously. A joint
statement on proactive publication was also published on the ICIC’s website.
o My office holds twice yearly information sessions for FOI practitioners through
our Information Contact Officers Network (ICON) and engages with other
Australian government agencies and civil society in relation to the Open
Government Partnership (OGP). (For further information, see Commissioner
briefs
FOI OAIC engagement and Guidelines update D2022/000236).
•
Freedom of the press report: The Senate – Environment and Communications
Reference Committee undertook an inquiry into freedom of the press and issued its
final report on 19 May 2021.
o Recommendation 2 of the report states ‘that the Australian Government work
with the Office of the Australian Information Commissioner to identify
opportunities to promote a culture of transparency consistent with the
objectives of the
Freedom of Information Act 1982 among Ministers, Senior
Executive Service and other Freedom of Information decision-makers’ (see
Commissioner brief D2022/000236 –
FOI OAIC engagement and Guidelines).
o Some media commentary has focused on the OAIC’s limited resources to
effectively promote a culture of transparency and that intel igence and national
security agencies are not currently covered by the FOI Act (see
https://theconversation.com/its-time-for-the-government-to-walk-the-talk-on-
media-freedom-in-australia-161342).
o The OAIC wil continue to identify opportunities to promote a culture of
transparency and the right to access government held information by providing
guidance and engaging with agencies and ministers.
o The OAIC’s continued engagement is consistent with Recommendation 16 of the
Parliamentary Joint Committee on Intel igence and Security (PJCIS) inquiry into
‘the impact of the exercise of law enforcement and intelligence powers on
freedom of the press’ which recommended that the Attorney-General’s
FOIREQ22/00095 206
Department identify additional opportunities to promote training material
prepared by the OAIC and associated training opportunities across its
department (for further information see D2021/000970 –
Commissioner Brief
PJCIS Freedom Report Recommendations).
•
COAG Legislation Amendment Bill 2021
o In
Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of
Information) [2021] AATA 2719 (5 August 2021), Justice White discussed the
principles of col ective responsibility and cabinet solidarity and concluded that
based on the evidence, National Cabinet did not act in accordance with those
principles.
o On 2 September 2021, the COAG Legislation Amendment Bil 2021 (the Bil ) was
introduced into the Parliament. The Bill proposes to expand the definition of
‘Cabinet’ in s 4 of the FOI Act to include the committee known as the National
Cabinet and a committee (however described) of the National Cabinet, and to
amend s 34 of the FOI Act.
o The Bil was referred to the Senate Finance and Public Administration Committee
for inquiry and report.
o The OAIC made a submission and the Australian Information Commissioner gave
evidence at the public hearing held on 27 September 2021 (for further
information see D2022/000243– Commissioner Brief –
National Cabinet).
o The Committee published its report on 14 October 2021, with a majority of
Senators recommending that the Bil be passed.
o The Bil ’s current status is ‘before the House of Representatives’.
•
Other issues: For further information see FOI official ministerial documents
(D2022/000223) and FOI Act Reforms (D2022/000245)
Document history
Updated by
Reason
Approved by
Date
Suseela Durvasula, 01.02.22
February 2022 Senate
Rocelle Ago
Irene Nicolaou, 21.01.22
Estimates
FOIREQ22/00095 207
Commissioner brief: FOI OAIC engagement and Guidelines update
Key messages
• The OAIC engages widely with Information Access practitioners across Australia and
overseas. The breadth of our regulatory engagement is consistent with our strategic
priority to advance domestic and international access to information laws. The key
areas of focus include:
o facilitating and encouraging practices that are ‘open by design’
o ensuring proactive publication of government held information, particular during
the Covid-19 pandemic
o producing a wide range of resources and guidance that is designed to assist FOI
applicants and government agencies to engage positively with the FOI Act.
•
Open Government Partnership (OGP)
The OAIC continues to engage with Australian government agencies and civil society
in relation to the OGP. The OAIC contributed to the development of Australia’s
third
National Action Plan, including by helping design a commitment in relation to access
to government information. Further information regarding the OGP is at
Attachment
A .
•
The Association of Information Access Commissioner (AIAC)
The Australian Information Commissioner continues to engage with Information
Commissioners and Ombudsmen from other Australian jurisdictions through the
AIAC. On 24 September 2021, Australian Information Access Commissioners
published a statement to promote the proactive release of information. Further
information regarding the AIAC is at
Attachment B.
•
International Conference of Information Commissioners (ICIC)
The Australian Information Commissioner also engages with Information
Commissioners globally through international forums such as the ICIC. Key milestones
include:
o In April 2020, May 2020 and September 2020, the ICIC
issued statements on the
right of access to information in the context of the global pandemic, the duty to
document decisions and reaffirming the importance of access to information laws
in building greater public trust in government. In June 2021, the Australian
Information Commissioner attended the
12th annual ICIC conference and updated
members on developments in access to information laws across other
jurisdictions in Australia.
o The OAIC also put forward a
resolution calling for the proactive publication of
information relating to the COVID-19 pandemic. The Resolution was adopted
unanimously by al members of the ICIC through a joint statement issued on the
ICIC website.
o Further information regarding the ICIC is at
Attachment C.
1
FOIREQ22/00095 208
•
International Access to Information Day (IAID)
The OAIC promoted IAID (27 September 2021) through a dedicated website containing
resources such as a campaign video; a Commissioner; message tips for FOI applicants
and FOI decision makers; and IAID events and promotional materials.
•
Information Contact Officers Network (ICON)
The OAIC holds twice yearly information sessions for FOI practitioners. The most
recent
ICON information session was delivered via webinar on 27 September 2021 to
mark IAID. The session looked at current information access trends and proactive
publication experiences in New Zealand and at the Federal Court of Australia. In
2022, we are planning to hold two officer level ICON information sessions on specific
topics and one Commissioner led session in September 2022. All sessions wil be held
virtually. Further information regarding the ICON is at
Attachment E.
•
Consultations and guidance
The OAIC has continued to develop guidance for agencies and FOI applicants. The OAIC
has also consulted with international non-government organising including UNESCO to
advance access to information laws around the world. Examples include:
o On 1 September 2021, the OAIC published a ‘
Direction as to certain procedures
to be fol owed by applicants in Information Commissioner reviews’. A ‘
Quick
Guide’ was also uploaded onto the OAIC website to assist FOI applicants navigate
the direction.
o In September 2021, the OAIC published the
Disclosure Log Desktop Review and
revised Part 14 of the FOI Guidelines for consultation. The purpose of the review
was to identify whether agencies and ministers are complying with their
disclosure log obligations, and the extent to which they make documents
available for download from their websites. The report made findings and
recommendations to assist agencies identify areas where improvements can be
made to their disclosure log practices to facilitate greater public access to
government held information.
o Further information regarding the Disclosure Log Desktop Review is at
Attachment G and general guidance updates at
Attachment F.
o In April 2021, the OAIC responded to the 2021
UNESCO Survey on Public Access
to Information. Further information regarding the UNESCO survey is at
Attachment D.
•
Senate Inquiries
The OAIC has participated in the fol owing senate enquiries.
o On 13 August 2019, the Australian Information Commissioner appeared as a
witness at a
Senate inquiry into ‘the impact of the exercise of law enforcement
and intelligence powers on freedom of the press’, accompanied by Ms Elizabeth
Hampton and Ms Rocel e Ago.
o On 26 August 2020, the
Parliamentary Joint Committee on Intelligence and
Security (PJCIS)
published its ‘Inquiry into the impact of the exercise of law
enforcement and intelligence powers on the freedom of the press’.
2
FOIREQ22/00095 209
o Recommendation 16 recommends ‘that the Australian Government review and
prioritise the promotion and training of a uniform Freedom of Information culture
across departments, to ensure that application of the processing requirements
and exemptions allowed under the
Freedom of Information Act 1982 are
consistently applied.’
o Further information regarding the Press Freedom Report is at
Attachment I. o In September 2021, the OAIC made a submission to the
Senate inquiry into the
COAG Legislation Amendment Bill 2021, which would extend provisions
protecting Cabinet deliberations and decisions from disclosure to the National
Cabinet.
o In October 2021, the Senate Inquiry recommended the draft bil be passed. A
copy of the COAG Amendment Bil Report handed down by the Senate Inquiry can
be found here: D2021/018115
o On 19 October 2021, the Committee published its report. The Committee made
only 1 recommendation: that the Bil be passed (at 3.89 of the report). Labor
Senators, Australian Greens and Senator Patrick provided dissenting reports al
opposing the inclusion of Schedule 3 of the Bil among other things.
o Further information regarding the COAG amendment bil , and the
National
Cabinet general y, can be found in Senate Estimates Brief 44: D2021/015532.
Possible questions
•
How have the Disclosure Log Desktop Review results been used by the OAIC?
• The OAIC has used the findings of the review to prepare a draft update to Part 14 of
the FOI Guidelines, which we shared for consultation through our website. The
consultation period concluded on 15 October 2021 and the OAIC is currently
considering the feedback received.
•
What is the OAIC doing to promote the Open Government Partnership?
The OAIC is an active participant in the OGP.
The Acting FOI Commissioner is a member of the Open Government Forum and OAIC
staff have also attended Forum meetings as observers.
Staff from my office participated in working groups to develop concepts and
commitments for inclusion in the third National Action Plan, with a particular focus on
the concept ‘Open by Design (Right to know)’.
I meet with Australian Information Commissioners and Ombudsmen bi-annually. At
our last meeting in September we developed a uniform set of principles to support
proactive disclosure of government-held information in light with the Open by Design
commitment under Australia’s Third Open Government National Action Plan 2021-
2022.
On 24 September 2021, the Australian Information Access Commissioners published an
authoritative statement to promote the proactive release of information. The
Open by
3
FOIREQ22/00095 210
Design Principles were released ahead of International Access to Information Day on
28 September.
•
Have your virtual ICON information sessions held in 2020 and September 2021 been
successful? Do you plan to continue holding these information sessions virtually?
We held our first virtual ICON webinar on 4 November 2020, which enabled
participation by 67 FOI practitioners from locations around Australia. Our session held
on 22 April 2021 had more than 100 staff from government agencies in attendance.
Our most recent ICON session held on 27 September 2021 had 75 participants. We
consider this format is suitable as it al ows us to reach more participants across
Australia. The shift to holding ICON information sessions virtually has ensured that
information contact officers remain well informed and connected to the OAIC during
the pandemic. It also allows for contact officers across Australia to have equal access to
these presentations which were previously usually held in Canberra.
The feedback we have received from ICON members fol owing these virtual sessions
has been positive, and we wil continue to look for ways to meaningful y engage with
this network.
•
How has COVID-19 affected OAIC engagement with stakeholders?
The COVID-19 pandemic has not affected the OAIC’s ability to effectively engage with
our stakeholders, whether they are our agency contacts or members of the public. We
have been able to harness technology to continue regular meetings with agencies and
continue to hold conferences with IC review applicants to discuss issues arising in the
conduct of IC reviews and to explore ways of resolving the issues in dispute.
•
What assistance does the OAIC provide to support agencies discharge their functions
and powers under the FOI Act?
The OAIC publishes a range of resources to assist agencies discharge their functions and
powers under the FOI Act. These include:
o agency resources, FAQs and the FOI Guidelines
o regular e-newsletters for FOI practitioners which provide practical guidance and
processing tips
o the publication of IC review decisions provides guidance to agencies in the use of FOI
Act provisions and the OAIC holds twice yearly information sessions for FOI
practitioners (although our ability to do this has been impacted by COVID-19
restrictions)
o the OAIC also operates an enquiry line that agencies can call for advice and
guidance.
•
How wil the OAIC respond to Recommendation 2 of The Senate – Environment and
Communications Reference Committee – Freedom of the press inquiry?
Recommendation 2, made on 19 May 2021 states:
The committee recommends that the Australian Government work with the Office of
the Australian Information Commissioner to identify opportunities to promote a
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FOIREQ22/00095 211
culture of transparency consistent with the objectives of the
Freedom of Information
Act 1982 among Ministers, Senior Executive Service and other Freedom of
Information decision-makers.
The OAIC wil continue to provide guidance and advice to FOI practitioners through
new and updated FOI Guidelines. The Guidelines are promoted through our
Information Contact Officers Network (ICON) and e-newsletters. We have also recently
developed an ‘FOI Essentials toolkit for Australian Government agencies and ministers’
for FOI practitioners. This resource steps FOI practitioners through the key elements of
the FOI Act, and provides ‘tips and tools’, (including links to more detailed guidance,
relevant forms, common mistakes, checklists etc) for managing FOI requests. The OAIC
has also issued guidance in relation to the Information Publication Scheme for Senior
Executive Staff.
As required, the OAIC will consider issuing additional guidance and undertaking further
engagement to promote a culture of transparency and the right to access government
held information.
Attachments
Attachment A: Open Government Partnership
Attachment B: Association of Information Access Commissioners
Attachment C: International Conference of Information Commissioners
Attachment D: UNESCO Survey on Public Access to Information
Attachment E: Information Contact Officers Network
Attachment F: Guidance updates
Attachment G: Disclosure Log Desktop Review
Attachment H: Senate Inquiry - Freedom of the Press Report
Attachment I: Establishment of the Commonwealth Integrity Commissioner
Attachment J: Overview of FOI matters raised in the Richardson Review
Document history
Updated by
Reason
Approved by
Date
Suseela Durvasula
Senate Estimates
11.01.22
February 2022
5
FOIREQ22/00095 212
Attachment A
Open Government Partnership
The OAIC participated in the development of Australia’s
third National Action Plan,
including by helping design a commitment in relation to access to government
information. Relevantly, the proposed commitments include:
- Open by Design (Right to Know): To improve the accessibility of information held
by government, or under government contractual or outsourcing arrangements,
by developing key features for a nationally consistent approach to the proactive
release of information commonly sought by members of the Australian community
or which they identify as valuable and/or necessary for open and accountable
government.
- Building trust in data sharing: The Office of the National Data Commissioner wil
promote good practice in government data sharing by implementing the Data
Availability and Transparency legislation and by publishing guidance on sharing
data safely and a data sharing agreement to help protect data.
- Improving transparency and trust related to the use of emergency and crisis
powers: Involves developing a centralised online ‘landing page’ on Australia.gov.au
which may include information such as legislation, regulatory and policy
documents, advice about the introduction of new legislation and its timing, the
amount and allocation of funding to facilitate the crisis response and information
about oversight mechanisms.
- Best practice in dealing with FOI requests: wil identify differences in the way
Australian Government departments and agencies process and respond to FOI
requests to identify how to ensure consistency in how applicants experience the
FOI system.
The OAIC has also worked closely with Information Commissioners and Ombudsmen
across Australia to develop a statement of principles in line with the Open by Design
commitment under Australia’s Third Open Government National Action Plan 2021-
2022.
6
FOIREQ22/00095 213
Attachment B
Association of Information Access Commissioners (AIAC)
On 24 September 2021, Australian Information Access Commissioners published an
authoritative statement to promote the proactive release of information. The
Open by
Design Principles were released ahead of International Access to Information Day on 28
September, and should be used by government agencies to encourage and authorise
the proactive release of information and promote open government.
The principles recognise that:
- information held by government and public institutions is a public resource
- a culture of transparency within government is everyone’s responsibility
- appropriate, prompt and proactive disclosure of government-held information:
informs community
increases participation and enhances decision-making
builds trust and confidence
improves service delivery
is required or permitted by law
improves efficiency.
7
FOIREQ22/00095 214
Attachment C
International Conference of Information Commissioners (ICIC)
The OAIC is an accredited member of the ICIC.
In April and May 2020, the OAIC joined with international and domestic counterparts to
issue joint statements on the right of access to information in the context of the global
pandemic and the duty to document (does not cease in a pandemic, it becomes more
essential).
On 28 September 2020, the OAIC joined our international col eagues in reaffirming the
importance of access to information laws in building greater public trust in
government.
In June 2021, the OAIC led the adoption of a resolution at the ICIC 12th annual
conference hosted by the Brazilian Office of the Comptrol er General. The resolution
called for the proactive publication of information relating to the COVID-19 pandemic
and was adopted unanimously.
A copy of the adopted Resolution can be found on the ICIC website: D2021/015852
8
FOIREQ22/00095 215
Attachment D
2021 UNESCO Survey on Public Access to Information (SDG Indicator 16.10.2)
UNESCO conducts the survey on public access to information in line with its role as the
UN custodian agency for Sustainable Development Goals (SDG) Indicator 16.10.2 that
tracks progress on the adoption and implementation of “constitutional, statutory
and/or policy guarantees for public access to information”.
In April 2021, the OAIC completed the 2021 survey on behalf of Australia, as the central
oversight body responsible for access to information laws in Australia.
The findings of the survey wil be reported to UNESCO Member States via the IPDC
Council and wil be included in other important reporting exercises at the international
level, including the annual UN Secretary-General SDG Progress Report.
On 6 December 2021, UNESCO published an executive summary and some key findings
from the 2021 Survey on their website. UNESCO have indicated that a ful report wil be
released shortly.
A copy of the executive summary can be found here, and the key findings here.
9
FOIREQ22/00095 216
Attachment E
Information Contact Officers Network (ICON)
The OAIC holds regular ICON virtual information sessions to share information about
our activities and areas of interest such as FOI processing, Information Commissioner
reviews and the Information Publication Scheme. The webinars are also a chance for
members to network and share knowledge with information professionals from other
government agencies.
These sessions were previously held in person but are now held virtual y. Our first
virtual ICON webinar was held on 4 November 2020. We have since hosted two virtual
ICON sessions on 22 April 2021 and 27 September 2021.The webinar featured New
Zealand Parliamentary Deputy Ombudsman Bridget Hewson and General Counsel of
the Federal Court of Australia. The discussion focused on proactive publication and
information access through times of heightened activity and significant public scrutiny.
• Webinar statistics
September webinar
The September 2021 ICON webinar had 100 eligible registrations from almost 40
Australian Government agencies
Live attendance was 75% (75/100)
The average duration of attendees was 56 minutes for a 60-minute webinar
An additional 8 ICON members have accessed the webinar recording – this was the first
time we have used an on-demand function.
Previous webinars – for context/background
The April 2021 webinar saw 163 registrations and peaked at 105 attendees – 63%
attendance rate. Duration average data is not available
The Nov 2020 webinar saw 109 registrations and a peak of 67 attendees – 57%
attendance rate. Duration average data is not available
For comparison, an in-person ICON session in September 2019 saw just over 50
attendees.
The shift to holding ICON information sessions virtually has ensured that information
contact officers remain well informed and connected to the OAIC during the pandemic.
It also al ows for contact officers across Australia to have equal access to these
presentations which were previously usual y held in Canberra.
The feedback we have received from ICON members fol owing these virtual sessions
has been incredibly positive, and we wil continue to look for ways to meaningful y
engage with this network.
10
FOIREQ22/00095 217
Attachment F
•
Guideline Updates
The OAIC wil shortly be updating Parts 5 (Exemptions) and 6 (Conditional exemptions)
of the FOI Guidelines.
The OAIC is currently working with the Attorney-General’s Department on an IPS
reform project which aims to improve participation in the IPS amongst Commonwealth
agencies and support agencies to develop a culture of proactive publication. The OAIC
is reviewing Part 13 (Information publication scheme) as a result.
In September 2021 the OAIC consulted with agencies on revised Part 14 of the FOI
Guidelines which incorporate the findings of the Disclosure Log Desktop Review. The
consultation period closed on 15 October 2021, and we are currently reviewing
comments and updating the Guidelines in response.
In 2021, the OAIC also revised and published updated versions of:
- Part 4 (Charges for providing access)
- Parts 3 (Processing and deciding requests for access)
- Part 10 (Review by the Information Commissioner) to incorporate the ‘Direction as
to the certain procedures to be fol owed by applicants in IC reviews’ and clarify the
practice around hearings in IC reviews.
- Part 11 (Investigations and complaints)
- Part 12 (Vexatious applicant declarations).
•
Disclosure of public servants’ personal information (names and contact details)
On 1 July 2019, the OAIC published a discussion paper on disclosure of public servants’
personal information (names and contract details) in response to FOI requests. (See
Commissioner brief – Public servants’ names and contact details - D2019/010070.) On
20 August 2020, I issued a position paper outlining my approach to this issue.
The OAIC wil shortly be revising Part 3 (Processing and deciding requests for access)
and Part 6 (Conditional exemptions) of the FOI Guidelines to give effect to the
approach outlined in the position paper and to take account of recent IC review and
AAT decisions.
•
FOI Essentials
The OAIC has developed a resource to assist FOI practitioners develop processes and
procedures to respond to FOI requests in a timely and cost-effective way. Key
components include:
- coordination of all OAIC practitioner resources in a central location, using easy to
find headings
11
FOIREQ22/00095 218
- new resources for agencies and ministers outlining how they can ‘take all
reasonable steps’ to find a document
- a checklist that identifies the key steps in making a decision about an FOI request.
The OAIC also published information for members of the public explaining how to
access Australian Government information and FAQs for applicants during the COVID-
19 pandemic.
•
Direction as to certain procedures to be fol owed by applicants in Information
Commissioner reviews
On 1 September 2021, the OAIC published a ‘
Direction as to certain procedures to be
fol owed by applicants in Information Commissioner reviews’. A ‘
Quick Guide’ was
also uploaded onto the OAIC website to assist FOI applicants navigate the direction.
12
FOIREQ22/00095 219
Attachment G
Disclosure Log Desktop Review:
In September 2021, the OAIC published our
Disclosure Log Desktop Review Report and
consultation draft of Part 14 of the FOI Guidelines.
The desktop review is a regulatory activity aimed at providing guidance to agencies and
Ministers and to promote public awareness around the proactive release of
government held information.
In October 2019 and March 2021, the OAIC completed a desktop review of agency
disclosure logs which examined 38 government agencies to assess compliance and
practices. The purpose of the review was to identify whether agencies and ministers
are complying with their disclosure log obligations, and the extent to which they make
documents available for download from their websites.
The report made key findings and recommendations to assist agencies identify areas
where improvements can be made to their disclosure log practices.
The OAIC has also used the findings of the review to prepare a draft update to Part 14
of the FOI Guidelines. Consultation closed on 15 October 2021 and we are currently
reviewing comments and updating Part 14 in response. Several agencies have accepted
the Review’s recommendations, and have implemented them or are in the process of
implementing them.
13
FOIREQ22/00095 220
Attachment H
Senate Inquiry - Freedom of the Press Report
On 19 May 2021, the Senate Environment and Communications Reference Committee
recommended ‘that the Australian Government work with the Office of the Australian
Information Commissioner to identify opportunities to promote a culture of
transparency consistent with the objectives of the
Freedom of Information Act 1982
among Ministers, Senior Executive Service and other Freedom of Information decision-
makers’ (Recommendation 2 at [2.87]).
The OAIC wil continue to identify opportunities to promote a culture of transparency
and the right to access government held information. This includes working with
agencies to further their proactive publication strategy, exploring opportunities to
engage with Ministers’ offices and SES officers, providing guidance to agencies and
ministers regarding arrangements for FOI processing, developing an e-learning package
for agencies. This is consistent with Recommendation 16 of the
Parliamentary Joint
Committee on Intelligence and Security (PJCIS) ‘Inquiry into the impact of the
exercise of law enforcement and intelligence powers on freedom of the press’ which
recommended that the Attorney-General’s Department identify additional
opportunities to promote training material prepared by the OAIC and associated
training opportunities across its department.
14
FOIREQ22/00095 221
Attachment I
Establishment of the Commonwealth Integrity Commission (CIC) The OAIC supports the objectives of the CIC to prevent and investigate corruption in
the Australian government. These objectives align with the OAIC’s strong commitment
to public sector integrity in its oversight of Australian Government agencies under the
FOI and Privacy Acts.
On 22 February 2021, the Information Commissioner made a submission on the draft
CIC Bil that included comments and recommendations in the OAIC’s capacity as
regulator of the FOI Act and the Privacy Act, and as a Commonwealth integrity agency
under the draft legislation.
15
FOIREQ22/00095 222
Attachment J
Overview of FOI matters raised in the Comprehensive Review of the Legal Framework
of the National Intelligence Community (the Richardson Review)
On 4 December 2020, the government released the unclassified version of the
Comprehensive Review of the Legal Framework of the National Intelligence Community
(the Richardson Review), along with the Government’s response to the review.
The Richardson Review recommends that the Australian Secret Intelligence Service
(ASIS), Australian Security Intel igence Organisation (ASIO), Australian Signals
Directorate (ASD), Defence Intel igence Organisation (DIO) and the Office of National
Intel igence (ONI) should continue to be exempt from the operation of the FOI Act
(Recommendation 184). It recommends that Home Affairs, including the Intelligence
Division, should remain subject to FOI Act (Recommendation 185).
Additional y, the Report recommends that the Australian Criminal Intel igence
Commission (ACIC) should remain subject to the FOI Act (Recommendation 187). The
government disagreed with this recommendation.
In response, the government has drafted the
Australian Crime Commission Amendment
Bil 2021 to make a minister or agency exempt from the operation of FOI Act in relation
to documents that have originated with, or have been received from, the ACIC. The Bil
would also make the ACIC an entirely exempt agency. The OAIC provided comments on
the draft Bill in November 2021, stating the FOI Act should continue to apply to ACIC’s
non-intel igence functions and that agencies should only be excluded from the
operation of the FOI Act in exceptional circumstances. We understand the Bil has not
yet been introduced to Parliament.
The review recommends several amendments to the FOI Act. It recommends amending
the Act so that it applies in relation to the Australian Geospatial-Intelligence
Organisation (AGO)’s non-intel igence documents, specifically in relation to documents
that used to be held by the Australian Hydrographic Office (Recommendation 186). It
recommends that consistent protections should be afforded to Suspicious Matter
Reports and Suspicious Transaction Reports produced by the Australian Transaction
Reports and Analysis Centre (AUSTRAC) (Recommendation 188).
The review also recommends that the FOI Act be amended so the Inspector-General of
Intelligence and Security (IGIS) is only required to provide evidence to the Information
Commissioner under s 55ZB of the FOI Act where the review involves one or more of
the agencies that the IGIS oversees (Recommendation 192). The government agreed
with al these recommendations.
The Government has agreed to implement 186 of the 190 unclassified
recommendations. This wil involve developing a modern legislative framework to
govern electronic surveil ance activities. The new framework wil replace the parts of a
number of existing acts that govern electronic surveil ance powers, including
the Telecommunications (Interception and Access) Act, the Surveil ance Devices
Act and the Australian Security Intelligence Organisation Act. The Government’s
16
FOIREQ22/00095 223
response to the Richardson Review does not identify whether the proposals for change
to the FOI Act wil fol ow the development of the new legislative framework (as above)
or wil proceed separately.
The Attorney-General’s Department (AGD) has advised that the Department of Home
Affairs is currently undertaking a significant electronic surveillance reform process
consistent with the Richardson Review recommendations. Further information is
available at Electronic Surveillance Reform. AGD expects the reform process will
include FOI Act considerations but development is currently in the early stages.
• Overview of the report
On 4 December 2020, the government released the unclassified version of the
Comprehensive Review of the Legal Framework of the National Intelligence Community
(the Richardson Review), along with the Government’s response to the review.The
review was undertaken by Mr Dennis Richardson AC and resulted in a published report
of 1,300 pages across four volumes.
The Terms of Reference were extensive and included consideration of:
the legislation relating to the six Australian Intelligence Community (AIC) agencies, as well as the
Australian Federal Police (AFP), Australian Criminal Intelligence Commission (ACIC), Australian
Transaction Reports and Analysis Centre (AUSTRAC) and the Department of Home Affairs to the
extent their legislative provisions relate to the intelligence activities of these four agencies.
The Terms of Reference did not specifical y mention the FOI Act.
In July 2018, the review team met with and wrote to stakeholders including the OAIC
inviting submissions against the Terms of Reference. The review team circulated a
discussion paper in July 2019, setting out a range of proposals. The discussion paper
was circulated to stakeholders including the OAIC. The OAIC provided a submission to
the review in January 2019. The submission focused on privacy but noted in relation to
FOI that the OAIC agrees in principle that it may be beneficial to change the
requirements about when the IGIS must be consulted. The OAIC also participated in a
workshop on Oversight, Transparency and National Security on 1 April 2019.
• Further information regarding the FOI issues in the Richardson Review can be found
here: D2021/016878
17
FOIREQ22/00095 224
Commissioner brief: FOI Extension of time applications
Key messages
• An agency or minister must make a decision on an FOI request within 30 days, unless
the timeframe has been extended.
• Where an agency or minister is unable to process an FOI request within the processing
period, they may request an extension of time (EOT):
o from the FOI applicant (by agreement under s 15AA)
o from the Information Commissioner under:
s 15AB (complex or voluminous)
s 15AC (where the agency or minister has been
unable to process the
request within the statutory timeframe)
s 51DA (where the agency or minister has been unable to process the
request for
amendment or annotation)
s 54D (where the agency or minister has been unable to process an
internal review application within the statutory timeframe).
• Part 3 of the FOI Guidelines encourage agencies to seek agreement with the FOI
applicant prior to lodging an extension of time request with the OAIC.
• EOT applications must include reasons why the request could not be processed within
the statutory processing period and provide a plan on how the further time (if granted)
wil be utilised by the agency or minister.
• It is important for agencies and ministers to consider early in the process whether an
extension of time is required, as an application for an extension of time is not an
automatic grant and each application is considered on its individual merits.
FOIREQ22/00095 227
Possible questions
•
What was the effect of COVID on extension of time applications received by the
OAIC?
In the beginning of the pandemic, in March 2020 the OAIC experienced a significant
increase of extension of time applications and notifications (489 total). Between March
and June 2020, the OAIC received 1,889 extension of time applications and
notifications (ss 15AA, 15AB, 15AC, 51DA and 54D), that is an increase of 55% for the
same period in 2019 (with 1,219 received in 2019).
From July 2020 – December 2020, we saw a significant reduction in the number of
agencies applying for extensions of time with COVID-19 being provided as a reason for
seeking that extension. However, from January 2021 there was a slight increase in
extensions of time where COVID-19 is being provided as a reason for seeking an
extension, particularly with reference to the various short, state and city-based
lockdowns which have occurred more recently.
The more recent lockdowns in NSW and the ACT in 2021, have caused a further
increase in extension of time applications requiring a decision. Some agencies remain
impacted by COVID-19, particularly those agencies who currently remain in a lockdown
geographical area and those currently involved in the rol -out of COVID-19
vaccinations.
During the January 2022 Omicron outbreak, the OAIC received extension of time
applications requesting extensions on the basis that the FOI team had personal y been
impacted by COVID and this has impacted agencies’ ability to process FOI requests.
Since 4 January 2022, the OAIC has received a number of extension of time
applications where reasoning includes staffing levels being affected by COVID-19
infections with either officers themselves being infected and requiring leave from
work, and/or family members being diagnosed with COVID-19 and officers requiring
leave in a carer capacity. Between 4 – 18 January 2022, the OAIC received
approximately 28 extension of time applications citing COVID-19 as a reason for delay.
The vast majority of extensions of time received that refer to COVID-19 in the
reasoning are being sought under s 15AB of the FOI Act, that is that the request is
complex and/or voluminous.
•
What action is the OAIC proposing to take to address poor compliance with statutory
timeframes? The OAIC continues to monitor agency compliance with statutory timeframes and
works directly with some agencies to address this issue. We are pleased to see overall
improvements in timeliness since 2016-17 (where 58% of requests were processed
within the statutory timeframe). For 2020-21 77% were processed within the statutory
timeframe. Work undertaken by the OAIC in promoting compliance with statutory
timeframes includes:
FOIREQ22/00095 228
o conducting an assessment of agencies’ compliance with the statutory
processing period, and writing to agencies which are consistently not
complying with the Act
o conducting FOI complaint investigations with a focus on making
recommendations that assist agencies to comply with statutory timeframes
and highlights FOI as a whole-of-agency responsibility
o publication of the outcomes and recommendations of FOI complaint and the
CI investigation on the OAIC website for the benefit of agencies and the public
o making decisions on extension of time applications
o using our formal powers to require provision of a statement of reasons when a
person seeks review of a deemed refusal
o providing assistance through our enquiries phone line
o publishing regular e-newsletters for FOI practitioners
o publishing resources on our website, including checklists to streamline the FOI
request process
o the OAIC’s Information Contact Officer Network webinar in April 2021 focused
on EOTs. The event was attended by over 100 FOI practitioners. The practical
guidance provided during that session went towards improving the quality of
EOT applications and assisting agencies when processing FOI requests to
comply with statutory processing timeframes.
Extension of time applications remains a standing agenda item for external
stakeholder meetings to provide an opportunity for added guidance to agencies on
applications for extensions of time.
•
What factors does the OAIC take into consideration when considering an extension of
time application? Factors considered include:
o whether the FOI request is complex and/or voluminous
o the length of time that has been requested by the agency or minister
o whether other extension provisions have been applied
o whether adequate explanatory information has been provided to support the
application for an extension
o what work has already been undertaken to process the FOI request, and
o what work wil be undertaken if the extension of time is granted.
The factors considered by a decision maker is determined by the provision under
which the extension of time is sought. Extensions of time sought under s 15AB of the
FOI Act must address the complexity and/or volume of the FOI request.
In some circumstances, the OAIC may consult with the FOI applicant. Any comments
the FOI applicant makes wil be taken into consideration.
FOIREQ22/00095 229
•
How long can the OAIC grant an extension of time for?
The Information Commissioner may grant an extension of time for 30 days, or such
other period as the delegate of the Information Commissioner considers appropriate.
The time period requested by the agency or minister is based on the facts and
circumstances of each application.
•
How many extensions of time applications were received from agencies and
Ministers to date this financial year and last financial year? For
Q1 and Q2 of this financial year, the OAIC received 806 ss 15AB, 15AC, 51DA and
54D applications from agencies and Ministers.
The OAIC was also notified by agencies and ministers of 1,685 s 15AA agreements.
o For the same period 2020-21, the OAIC received 456 ss 15AB, 15AC, 51DA and
54D applications from agencies and Ministers.
The OAIC was also notified by
agencies and ministers of 1,503 s 15AA agreements.
In the
2020-21 financial year the OAIC received 992 ss 15AB, 15AC, 51DA and 54D
applications from agencies and Ministers.
The OAIC was also notified by agencies and ministers of a further 2,595 s 15AA
agreements.
•
Do you always grant an extension of time?
No. We wil decide any application for an extension of time to process an FOI request
on a case-by-case basis. Our assessment wil take into account factors which may make
it chal enging for agencies to meet the statutory timeframe, such as the availability of
subject matter experts, decision makers or line area staff. FOI applicants may be
consulted for their comments on the application, and those comments wil be
considered by the decision maker. The agency must justify why an extension is
appropriate. The OAIC may extend the processing period by an amount of time
suitable to the circumstances, that may be 30 days or a longer or shorter period as
appropriate.
•
How many extension of time applications does the OAIC grant?
For
Q1 and Q2 of this financial year, the OAIC granted 77% of al extension of time
applications received that require an Information Commissioner decision. The OAIC
‘varied’ 10% and refused 5%. 5% of the applications received by the OAIC were
subsequently withdrawn.
In
2020-21, the OAIC granted 77% of all extension of time applications received that
require an Information Commissioner decision. The OAIC ‘granted varied’ 10% and
refused 6%. 5% of the applications received by the OAIC were subsequently
withdrawn.
FOIREQ22/00095 230
•
Have you issued any guidance about what FOI applicants can do if they have not
received a decision within time?
The OAIC has published information about an individual’s review rights and the
availability of Information Commissioner review where a decision has not been made
within time.1 If an agency or minister does not make a decision on the FOI request
within the required time, the FOI request is taken to have been refused. Any charge
the agency or minister asked to pay is no longer due, and any deposit must be
refunded. In these circumstances, the FOI applicant has the right to ask for Information
Commissioner review of this decision (internal review does not apply to this kind of
decision).
Document history
Written by
Reason
Approved by
Date
Shel ey Napper
February 2022
Senate estimates
1 OAIC website: https://www.oaic.gov.au/freedom-of-information/how-to-make-an-foi-request/when-to-expect-a-decision/ and
https://www.oaic.gov.au/freedom-of-information/reviews-andcomplaints/information-commissioner-review/.
FOIREQ22/00095 233
Commissioner brief: FOI funding and workload
Item/Year
2013-14
2019-20
2020-21
2021-22
Staffing
• 13 May 2014 x
30 June 2020:
30 June 2021:
As at 31 December 2021:
25 staff
• 17 x staff
• 21 x staff
• 21 x staff headcount
headcount
headcount
headcount
• Excludes Executive
(budget night)
• Excludes Executive
• Excludes Executive
• Excludes areas that
• 7 October 2014 x
• Excludes areas
• Excludes areas that
contribute to FOI
13 staff
that contribute to
contribute to FOI
• A/g FOI
headcount
FOI
Commissioner
• Excludes
appointed Aug 21
Executive
• Assistant
• Excludes areas
Commissioner FOI
that contribute
appointed Nov 21
to FOI
Funding
Internal budget for
FOI appropriation
FOI appropriation
FOI appropriation funding
2014-15 not located.
funding not traced.
funding not traced.
not traced. However,
However, internally
However, internally
internally allocated budget
The 2014-15 financial
allocated budget is:
allocated budget is:
is:
statements show
$9.365mil ion spent on
• FOI division:
• FOI division:
• FOI division:
staffing. Total
$2,430,000
$2,566,000
$2,884,000
headcount at 30 June
• Areas contributing
• Areas contributing
• Areas contributing to
2014 was 91.
to FOI: $570,000
to FOI: $605,000
FOI: $933,525
• Total FOI
• Total FOI
• Total FOI al ocation:
Therefore, approximate
allocation:
allocation:
3,818,000
cost of 25x FOI staff
$3,000,000
$3,171,000.
was $2,573,000.
The above figures exclude
The above figures
The above figures
FOI overhead costs, such as
exclude FOI overhead
exclude FOI overhead
rent and shared services.
costs, such as rent and
costs, such as rent and
shared services.
shared services.
D2021/021260
D2020/010201
D2021/013198
IC reviews 30 June 2014:
30 June 2020:
30 June 2021:
31 December 2021:
• 525 received
• 1,066 received
• 1,224 received
• 882 received
• 646 finalised
• 829 finalised
• 1,018 finalised
• 698 finalised
Comparison to 30 June
YTD comparison to 30
Forecast to 30 June 2022
2014:
June 2014:
• Forecast based on
• Received 103%
• Received 133%
average YTD rate of
more
more
receipt and
• Finalised 28%
• Finalised 58%
finalisation.
more
more
• 1,764 received
• 32% fewer staff.
• 16% fewer staff.
• 1,396 finalised
• 5% more staff.
D2021/016546
FOI
30 June 2014:
30 June 2020:
30 June 2021:
31 December 2021:
Complaints
• 77 received
• 109 received
• 151 received
• 99 received
• 119 finalised
• 71 finalised
• 174 finalised
• 97 finalised
Comparison to 30 June
Comparison to 30 June Forecast to 30 June 2022
2014:
2014:
• Forecast based on
• Received 42%
• Received 96%
average YTD rate of
more
more
receipt and
• Finalised 40%
• Finalised 46%
finalisation.
fewer
more
• 198 received
• 32% fewer staff.
• 16% fewer staff.
• 194 finalised
• 5% more staff.
Page 1 of 2
FOIREQ22/00095 234
Extension
30 June 2014:
30 June 2020:
30 June 2021:
31 December 2021:
of time
• 525 finalised
• 1363 finalised
• 1363 finalised
• 2,541 finalised
(decision
required)
Comparison to 30 June
Comparison to 30 June Forecast to 30 June 2022
2014:
2014:
• Forecast based on
• Finalised 160%
• Finalised 160 more
average YTD rate of
more
• 16% fewer staff.
receipt and
• 32% fewer staff.
finalisation.
• 5,082 finalised
• 5% more staff.
Document history
Updated by
Reason
Approved by
Date
Brenton Attard
February 2022 Senate
Estimates
Data calculations: D2021/016546
Page 2 of 2
FOIREQ22/00095 235
Commissioner brief: FOI Act Reforms
Key messages
• The FOI Act provides a sound basis for providing access to government held
information to the Australian public through formal FOI requests, the disclosure log and
the Information Publication Scheme. However there is room for improvement. Possible
areas for review include:
o Examining the language of the Act, particularly in the context of the digital
environment (including the use of word ‘document’ rather than ‘information)
o Examining the operation of other domestic and international legislation which
could further promote more timely and more proactive publication of
documents that are routinely requested under the FOI Act, for example,
Question Time Briefs, ministerial and senior official diaries
o Reviewing the recommendations made by the Hawke Review undertaken in
2013, including the recommendation to review the agencies listed in Part 1 of
Sch 2 of the FOI Act
o Reviewing the current structure of the Australian Information Commissioner Act
2010, particularly in relation to the power to delegate decision making
o Reviewing Part VII of the FOI Act relating to the Review by the Information
Commissioner to assist in further increasing efficiencies in the process.
• On 18 March 2021 the
Archives and Other Legislation Amendment Bil 2021 was
introduced to Parliament and read before the Senate:
o The Bill amends the
Freedom of Information Act 1982 to exclude a right of access
to documents provided to, or created by, the Independent Review into the
workplaces of Parliamentarians and their staff conducted under the Australian
Human Rights Commission Act 1986 by the Sex Discrimination Commissioner;
and Archives Act 1983 to provide that these documents would not come into the
open access period until 99 years after the year the documents came into
existence.
o On 25 March 2021, during the second reading before the House of
Representatives, Ms Zali Steggal OAIM, MP, Member for Warringah New South
Wales proposed an amendment to the bil regarding the exclusion of material
handed to the inquiry from ministers’ offices and departments, so that the bil
does
not affect existing FOI rights. (Schedule 1, item 7, page 4)
o On 11 May 2021, Senate agreed to the House of Representative amendment
above and the Amendment Bil passed both Houses on the same day.
• The 2013 Hawke Report into the FOI Act, identified a number of areas in which changes
could be made to the FOI Act which wil increase its ability to delivery transparency and
accountability for the Australian public.
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• The review of charges under the FOI Act was published in 2012.
Critical facts
•
Charges review: On 7 October 2011, the Minister for Privacy and Freedom of
Information, the Hon Brendon O’Connor, issued terms of reference for a review of
charges under the FOI Act. The Australian Information Commissioner issued a discussion
paper on 31 October 2011, and received 23 submissions from agencies and applicants.
The review report was published in February 2012. The review made 10
recommendations for a new charges framework. These recommendations include
encouraging administrative access; introducing discretionary FOI application fees to
encourage people to use an administrative access scheme before resorting to the FOI
Act; no FOI processing charge for first five hours and a flat $50 fee for work between five
and 10 hours; 40 hour ceiling on processing time (including for personal requests which
are not subject to charges); specific access charges for activities such as supervising
inspection; a reduction in charges for delayed processing; introduction of an IC review
fee if the applicant does not first seek internal review, and indexation of all FOI fees and
charges to the CPI.
•
Hawke review: On 29 October 2012, the Attorney-General issued terms of reference for
a review of the operation of the FOI and AIC Acts under s 93B of the FOI Act and s 33 of
the AIC Act. On 1 July 2013, after considering 81 submissions, Dr Hawke finalised his
‘Review of the
Freedom of Information Act 1982 and
Australian Information
Commissioner Act 2010’.
The Hawke Report concluded that the FOI reforms of 2010 were operating as intended
and were generally wel received, however many of the concerns raised in submissions
were not directly addressed in the reform packages. The Hawke Report made 40
recommendations against 7 broad themes; the FOI Act framework, the OAIC’s structure
and processes, the two-tier system of merits review, exemptions, FOI Act coverage,
charges, regulatory and administrative burden. Dr Hawke also published a ‘FOI Better
Practice Guide’ for Australian government agencies and practitioners.
•
Belcher Red Tape Review: The ‘Independent Review of Whole-of-Government Internal
Regulation’ (the Belcher Red Tape Review) was published in August 2015. This
recommended that entities examine their FOI practices to ensure they impose the least
burdensome mechanisms for responding to FOI requests and consider more active
publication of information to decrease FOI requests. It also recommended that AGD
consider whether the IPS could be consolidated with other government initiatives for
enhancing public accessibility of government information, such as the digital
transformation agenda.
To reduce the administrative burden on entities, AGD should reduce the frequency of
reporting FOI matters from quarterly to annual y and seek the Government’s agreement
to prioritise implementation of the Hawke report to reduce the regulatory burden and
improve the operation of the FOI Act and consider issues raised about exemptions and
the scope of access to information under the FOI Act to enhance its operation.
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FOIREQ22/00095 237
•
ANAO Review: On 19 September 2017, the
Australian National Audit Office published a
report on
Administration of the Freedom of Information Act 1982. This report reviewed
the role of the OAIC and recommended that we develop an approach to verifying the
quality of data input and develop and publish a statement of our regulatory approach.
The audit also looked at how three entities (the Department of Veterans’ Affairs, the
Department of Social Services and the Attorney-General’s Department) processed FOI
requests. The report investigated the assistance provided to applicants, whether
agencies conducted reasonable searches for documents, timeliness of decision making,
the application of exemptions and whether internal reviews were conducted
appropriately.
•
Thodey Review of the APS: In May 2018 the government commissioned an independent
panel to review the Australian Public Service. The committee received more than 700
submissions. On 19 March 2019, a draft report, ‘APS Review: Priorities for change’, was
published. One key priority identified was, ‘an open APS, accountable for sharing
information and engaging widely’ which draws on Australia’s Open Government National
Action plan and refers to New Zealand’s decision to proactively release some
traditionally confidential material.
On 13 December 2019, the
Independent Review of the Australian Public Service was
published. Relevantly, the review made the fol owing recommendation:
Government to commission a review of privacy, FOI and record-keeping
arrangements to ensure that they are fit for the digital age, by:
- supporting greater transparency and disclosure, simpler administration and faster
decisions, while protecting personal data and other information, and
- exempting material prepared to inform deliberative processes of government from
release under FOI.
The government did not agree to implement this recommendation; which it noted,
saying the government’s principal focus is to ensure agencies effectively implement
current requirements, addressing practical problems where required and that further
reform would be considered separately to the Government’s response to the APS
Review.
•
FOI Amendment Bill : On 22 August 2018, Senator Rex Patrick introduced the
Freedom
of Information Legislation Amendment (Improving Access and Transparency) Bil 2018
into the Senate. It was referred to a Senate Committee. On 30 November 2018, the
Senate Committee recommend that the Senate not pass the Bill. The Bill proposed the
fol owing amendments to the FOI Act:
o require government to fil al three offices of the Australian Information
Commissioner, the Privacy Commissioner and the Freedom of Information
Commissioner.
o add a new category of decision that may be appealed to the AAT and allow
applicants to apply to the AAT for review of any IC reviewable decision without first
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FOIREQ22/00095 238
going through the Information Commissioner review process. An applicant taking
this option would pay the usual AAT application fee.
o require the Information Commissioner to notify an IC review applicant if is likely that
more than 120 days wil elapse before a decision under s 55K wil be made, or that
120 days has elapsed since the IC review application was made. The Information
Commissioner’s notice must state that an application to transfer the IC review
application to the AAT may be made to the OAIC.
o require the consistent application of exemptions by decision makers in the context
during IC review.
o require the Information Commissioner and Privacy Commissioner to hold legal
qualifications if making IC review decisions.
o require publication of documents on a disclosure log between 10 and 14 working
days after access is given.
o require publication of all external legal expenses incurred in relation to FOI matters.
o Senators and Members of the House of Representatives are not subject to FOI
charges unless the work generated by an access application involves charges
total ing more than $1000.
There was a brief second reading debate of the bil on 31 August 2020, during which
both Liberal and Labour Senators spoke against it. The Bil ’s current status remains as
‘Before Senate’. Further information is contained in Commissioner brief FOI Bil
D2022/000244.
•
Domestic and internal enforcement mechanisms: A domestic and international
comparison reveals the fol owing legislative measures to address non-compliance by
agencies fol owing the exercise of enforcement powers by the regulator in reviewing FOI
decisions:
o reports to the Prime Minister/House of Representatives (New Zealand)
o judicial review proceedings (New Zealand)
o contempt of court proceedings (United Kingdom), and
o summary offence proceedings with a maximum penalty of a $1,000 fine (Canada).
•
Archives and Other Legislation Amendment Bill 2021: Amends the
Freedom of
Information Act 1982 to exclude a right of access to documents provided to, or created
by, the Independent Review into the workplaces of Parliamentarians and their staff
conducted under the
Australian Human Rights Commission Act 1986 by the Sex
Discrimination Commissioner; and
Archives Act 1983 to provide that these documents
would not come into the open access period until 99 years after the year the documents
came into existence. The bil was introduced and read before Senate on 18 March 2021
and included a clause that would also exclude anything handed to the inquiry from
ministers' offices and departments from being made publicly available via FOIs.
On 25 March 2021, during the second reading before the House of Representatives, Ms
Zali Steggal OAIM, MP, Member for Warringah New South Wales proposed an
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FOIREQ22/00095 239
amendment to the bil regarding the exclusion of material handed to the inquiry from
ministers’ offices and departments.
On 11 May 2021, Senate agreed to the House of Representative amendment of the
fol owing:
(1) Schedule 1, item 7, page 4 (after line 29), after subsection 7(2DA), insert:
(2DB) A Minister and an agency other than the Australian Human Rights
Commission are not exempt under subsection (2DA)(a) from the operation
of this Act in relation to documents created for purposes other than the
Independent Review to which a right of access otherwise exists or existed
under the Act.
[Bil does not affect existing FOI rights]
The Amendment Bil passed both Houses on the same day.
•
COAG Legislation Amendment Bill 2021: Introduced on 2 September 2021. The Bil
proposes to expand the definition of ‘Cabinet’ in s 4 of the FOI Act to include the
committee known as the National Cabinet and a committee (however described) of the
National Cabinet.1 The Bil also proposes to amend s 34 of the FOI Act. The Explanatory
Memorandum states that the Bil ‘make clear that where Commonwealth legislation
makes provisions to protect from disclosure the deliberations and decisions of the
Cabinet and its committees, these provisions apply to the deliberations and decisions of
the committee of cabinet known as the National Cabinet’.
The Bil was referred to the Senate Finance and Public Administration Committee. The
Committee tabled its report on 19 October 2021. A majority of Committee members
recommended that the Bil be passed, with Labor, Australian Greens and Senator Rex
Patrick dissenting. The Bil ’s current status is ‘before the House of Representatives’. For
further information - see Commissioner brief: National Cabinet D2022/000243
.
Possible questions
•
Is the FOI Act working to achieve transparency and accountability in government?
The FOI Act provides a sound basis for providing access to government held information
to the Australian public, through formal FOI requests, the disclosure log and the
Information Publication Scheme. However, there is further room for improvement.
•
What are your suggestions for improvement to the FOI Act?
o Examining the language of the Act, particularly in the context of the digital
environment (including the use of word ‘document’ rather than ‘information)
o Examining the operation of other domestic and international legislation which could
further promote timelier and more proactive publication of documents that are
1 The National Cabinet has established five National Cabinet Reform Committees (NCRCs), corresponding to the priority areas of
Health, Energy, Infrastructure and Transport, Skil s and Rural and Regional. These committees have been tasked by the National
Cabinet to progress job creation. See: https://federation.gov.au/national-cabinet/national-cabinet-reform-committees
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FOIREQ22/00095 240
routinely requested under the FOI Act, for example, Question Time Briefs,
ministerial and senior official diaries
o Reviewing the recommendations made by the Hawke Review undertaken in 2013,
including the recommendation to review the agencies listed in Part 1 of Sch 2 of the
FOI Act
o Reviewing the current structure of the Australian Information Commissioner Act
2010, particularly in relation to the power to delegate decision making.
o Reviewing Part VII of the FOI Act relating to the Review by the Information
Commissioner to assist in further increasing efficiencies in the process.
•
The media has reported that the Australian government is becoming more secretive.
What are you doing to improve transparency and accountability in government?
o I continue to make IC review decisions which provide guidance to Australian
Government agencies. We continue to update the FOI Guidelines. We are reviewing
agency compliance with their disclosure log obligations. We completed a review of
agency compliance with their IPS obligations in June 2019.
•
What are your thoughts on the recommendation made by the Thodey review of the
APS that material prepared to inform the deliberative processes of government should
be exempt from release under the FOI Act?
The deliberative processes conditional exemption in s 47C of the FOI Act protects
information which relates to the opinions, advice or recommendations obtained,
prepared or recorded, or consultation or deliberations that have taken place for the
deliberative processes of an agency or a minister or the government. It does not apply
to ‘purely factual material’. In my view this exemption, which is subject to a public
interest test, adequately protects the ability of government officials to develop policy,
debate issues, and to brief ministers and government where appropriate.
The rights and interests of the Australian public would be significantly impacted if the
deliberative processes of government are not subject to an overriding public interest
test. It could undermine the objects of the FOI Act, which include that Australia’s
representative democracy is enhanced by increasing public participation in government
processes with a view to promoting better informed decision making and increasing
scrutiny, discussion, comment and review of the government’s activities.
•
Do you consider the FOI Act needs to be amended so that the FOI Act continues to
apply when a Minister changes?
The FOI Act gives a right of access to an ‘official document of a minister’. Unless
documents are required to be retained as National Archives, General Records Authority
No. 38 provides they can be destroyed when the exiting Minister ceases to hold a
ministerial post. If the documents are retained as National Archives, they wil not be
able to be accessed through a request to NAA for 20 years - until the open access period
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FOIREQ22/00095 241
commences. In some circumstances, the new Minister may be able to access
documents transferred to the NAA by their predecessor under GRA 38.
Key dates
• February 2012 – Australian Information Commissioner issues report into charges under
the FOI Act.
• 22 May 2013 – Australia announces decision to join the Open Government
Partnership.
• 1 July 2013 –Hawke Report into the operation of the FOI Act.
• August 2015 – Belcher red tape review published.
• 19 September 2017 – Australian National Audit Office publishes report ‘
Administration
of the Freedom of Information Act 1982’.
• 22 August 2018 – Senator Rex Patrick introduced
Freedom of Information Legislation
Amendment (Improving Access and Transparency) Bil 2018 into the Senate.
• 13 December 2019 – Thodey review of Public Service and the government’s response
published.
• 31 August 2020 – Second reading debate of
Freedom of Information Legislation
Amendment (Improving Access and Transparency) Bil 2018, during which both Liberal
and Labour Senators spoke against it.
• 11 May 2021 – Senate agreement to House of Representatives proposed amendment
to the
Archives and Other Legislation Amendment Bil 2021, so that the Bil does not
affect existing FOI rights. The Bill passed both Houses on the same day.
• 2 September 2021-
COAG Legislation Amendment Bil 2021 introduced to expand the
definition of ‘Cabinet’ in s 4 of the FOI Act to include the National Cabinet and a
committee (however described) of the National Cabinet and to amend s 34.
Document history
Updated by
Reason
Approved by
Date
Suseela Durvasula
Senate Estimates
11.01.21
February 2022
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FOIREQ22/00095 242
Commissioner brief: Monitoring agency and ministers' compliance with the FOI Act
Key messages
The table below sets out key statistics related to the compliance of particular agencies and Ministers with the FOI Act.
Agency 2020-21 2020-21 2021-22 2020-21 2020-21 Complain 2020-21 2021-22 IC IC
2020-21 2021-22
2020-21
FOI
FOI
FOI
Decisions Complain
ts on
IC
reviews
reviews
IC
IC reviews EOT
requests requests requests
made out ts
hand (as
reviews received
on hand reviews - - %
applicati
received finalised received to of time
received
at
received (to
%
deemed to ons
31/12/21
9/2/22)
31/12/21)
deemed 31/12/21 received
requiring
IC
decision
181
151
2
24 (up
PM
(down
(down
164
6%
C
47% on
34% on (328 p.a)
5
(4 in 21-
5
28
16
49
18%
118% on
(5/28)
(1/16)
19-20)
19-20)
22)
19-20)
61
36
7 (up
PM
(down
(down
42
100%
O
40% on
46% on
(84 p.a)
22
N/A
N/A
12
4
18
67%
(8/12)
(4/4)
250% on
19-20)
19-20)
19-20)
FOIREQ22/00095 243
Agency
2020-21 2020-21 2021-22
2020-21 2020-21 Complain 2020-21 2021-22 IC IC
2020-21 2021-22
2020-21
FOI
FOI
FOI
Decisions Complain
ts on
IC
reviews
reviews
IC
IC reviews EOT
requests requests requests
made out ts
hand (as
reviews received
on hand reviews - - %
applicati
received finalised received to of time
received
at
received (to
%
deemed to ons
31/12/21
9/2/22)
31/12/21)
deemed 31/12/21 received
requiring
IC
decision
277
168
2
142
DFA
(up 42% (up 24%
180
42%
(down
T
on 19-
on 19-
(360 p.a)
53
(0 in 21-
0
39
26
62
67%
(26/39)
(11/26)
39% on
20)
22)
20)
19-20)
1,600
1,244
0
6 (down
AAT
(up 2%
(up 8%
782
on 19-
on 19-
(1564 p.a)
23
(5 in 21-
5
9
9
5
0
11%
(1/9)
45% on
20)
20)
22)
19-20)
15,825
13,858
7,532
48
81 (up
DH
(down
(down
85%
A
10% on
6% on
(15,064
5,319
(48 in 21-
31
437
435
387
72%
(315/437 (369/435) 350% on
19-20)
19-20)
p.a)
22)
19-20)
FOIREQ22/00095 247
Attachment A: Australian Broadcasting Corporation
FOIREQ22/00095 248
FOIREQ22/00095 249
FOIREQ22/00095 250
FOIREQ22/00095 252
Attachment B: Australian Electoral Commission
FOIREQ22/00095 254
Attachment C: Norfolk Island Regional Council
FOIREQ22/00095 255
FOIREQ22/00095 256
Attachment D: Commonwealth Director of Public Prosecutions
FOIREQ22/00095 257
FOIREQ22/00095 258
